Mrs Betty Darego V. A.G. Leventis (Nigeria) Ltd & 3 Ors
July 21, 2015Timeless Pill For All Weekends…And A Favour!
July 25, 2015National Institute for Policy & Strategic Studies (NIPSS) Kuru V. Kraus Thompson Organisation & 3 Ors
(Court of Appeal – July 2015)
Legalpedia ELectronic Citation: LER[2015] CA/L/703/2008
Areas of Law
APPEAL, COURT, JUDGEMENT AND ORDER, PRACTICE AND PROCEDURE, STARE DECISIS, WORDS AND PHRASES
Summary of Facts
The Claimant/1st Respondent obtained a default judgment against the Appellant on the 13th of May 1996. The Appellant on the 27th of May 1996, filed a motion on notice seeking the court to set aside the said default judgment which application was struck out by the court. Consequently, the Defendant/Appellant appealed to this Court against the ruling of the lower court on the 4th of December 1998 and same was dismissed on the 2nd of June 1999 for failure to file its Brief of Argument but was subsequently relisted on the 25th of January 2000 by a ruling of Court . The appeal was heard on its merit and judgment was delivered in favour of the Appellant. Dissatisfied with the relisting and ruling of the appeal, the 1st Respondent appealed to the Supreme Court, challenging the judgment of the lower court which ordered that the Appellant’s application dated 29th May 1996 be heard de novo before another judge of the trial court. Moreover, the Supreme Court granted judgment in favour of the 1st Respondent in respect of the Notice of Appeal setting aside the ruling of this Court. Whilst the 1st Respondent’s appeal was pending at the Supreme Court, the trial court heard and determined the application de novo and set aside the default judgment. Subsequent upon the judgment of the Supreme Court, the 1st Respondent filed a motion ex-parte at the lower court for a Garnishee Order Nisi attaching the accounts of the Appellant due to the default judgment that was obtained on the 13th of May 1996 and same was granted. Thereafter the Appellant filed a motion on notice to participate in the Garnishee proceedings and discharge the order nisi.The trial court delivered its ruling and terminated the Garnishee proceedings for non-compliance with condition precedent and lack of jurisdiction. Dissatisfied with the part of the ruling of the trial court, the Appellant has appealed against same.
Held
Appeal Dismissed
Issues for Determination
- Whether upon dispassionate consideration of the Affidavit evidence and having regard to the entire circumstances of the case, the learned trial judge was right in holding and coming to the conclusion that the judgment of 13th May, 1996 was still valid and subsisting (notwithstanding the Ruling of 28th July 2003 setting same aside) on the ground that the Judgment had come alive vide the Judgment of the Supreme Court dated 7th May 2004 having regard to the principle of stare decisis. (Grounds 1,2,3,4 and 5).
- Whether the learned trial judge had the jurisdiction to revive, restore and/or validate the Judgment of 13th May 1996 having subsequently set aside same vide a Ruling dated 28th July 2003 on the ground that the Supreme Court Judgment of 7th May 2004 had nullified every step taken by the Court. (Grounds 3 and 6).
Rationes
RELISTING AN APPEAL – EFFECT OF RELISTING AN APPEAL
“Every proceeding/hearing conducted consequent upon the appeal being relisted becomes a nullity.” PER A.O.OBASEKI-ADEJUMO,J.C.A
NULLITY – MEANING OF NULLITY – IMPLICATION OF WHERE A PROCEEDING IS DECLARED A NULLITY
“In Saleh v Monguno [2006] 15 NWLR (Pt 1001) 316; (2006) LPELR 2992 SC 37 – 38 paras F-D, the Apex Court, Per Oguntade JSC held:
“A nullity is in law a void act, an act which has no legal consequence. The act is not only bad, and as was stated by Denning L.J in UAC Ltd v Macfoy (1962) 3 ALL ER 1169, is incurably bad. A nullity is in law a void act; an act which has no legal consequence. In that regard, a proceedings which has been declared a nullity is void and without any legal effect or consequence whatsoever. Just as it does not confer any legal rights or title whatsoever, it does not impose obligation or liability on anyone or make any party liable to suffer any penalty or disadvantage…”
“The position of law was restated in Abubakar & Ors v Saidu Usman Nasamu (2010) LPELR 7826 (SC), where Adekeye JSC echoed thus:
“A nullity in law is a void act, an act which has no legal consequence. A proceeding which has been declared a nullity is void and without legal effect or consequence whatsoever. It does not confer any legal right whatsoever, or it does not impose any obligation or liability on anyone…” See also Okafor v A-G Anambra State & Ors [1991] 6 NWLR (Pt 200) 659.” PER A. O.OBASEKI-ADEJUMO,J.C.A
“A nullity is in law a void act, an act which has no legal consequence. The act is not only bad, and as was stated by Denning L.J in UAC Ltd v Macfoy (1962) 3 ALL ER 1169, is incurably bad. A nullity is in law a void act; an act which has no legal consequence. In that regard, a proceedings which has been declared a nullity is void and without any legal effect or consequence whatsoever. Just as it does not confer any legal rights or title whatsoever, it does not impose obligation or liability on anyone or make any party liable to suffer any penalty or disadvantage…”
“The position of law was restated in Abubakar & Ors v Saidu Usman Nasamu (2010) LPELR 7826 (SC), where Adekeye JSC echoed thus:
“A nullity in law is a void act, an act which has no legal consequence. A proceeding which has been declared a nullity is void and without legal effect or consequence whatsoever. It does not confer any legal right whatsoever, or it does not impose any obligation or liability on anyone…” See also Okafor v A-G Anambra State & Ors [1991] 6 NWLR (Pt 200) 659.” PER A. O.OBASEKI-ADEJUMO,J.C.A
SETTING ASIDE A DECISION OF COURT – A COURT HAS POWER TO SET ASIDE ITS DECISION THAT IS A NULLITY
“It is a settled law beyond dispute that a court is competent and possesses the inherent jurisdiction to set aside its own decision that is a nullity. This it can do, either on the application of a party or suo motu by the court itself. In Dingyadi .V. INEC (2010) LPELR 952 (SC) at 35 Paras D-E, the Supreme Court, Per M. Mohammed JSC, held:
“ the law regarding the position of any judgment or order of court which is a nullity for any reason whatsoever, is that the court in its inherent jurisdiction is entitled ex-debito justititae to have that judgment or order set aside on the application of an affected party or even suo-motu by the court itself”. See also Mark .V. Eke (2004) 5 NWLR (PT 865) 54; Eke .V. Ogbonda(2006)18 NWLR (Pt 1012) 506.” PER A.O.OBASEKI-ADEJUMO,J.C.A
“ the law regarding the position of any judgment or order of court which is a nullity for any reason whatsoever, is that the court in its inherent jurisdiction is entitled ex-debito justititae to have that judgment or order set aside on the application of an affected party or even suo-motu by the court itself”. See also Mark .V. Eke (2004) 5 NWLR (PT 865) 54; Eke .V. Ogbonda(2006)18 NWLR (Pt 1012) 506.” PER A.O.OBASEKI-ADEJUMO,J.C.A
Statute Referred To
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